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DICK V. BALCH, 33 U. S. 30 (1834)
U.S. Supreme Court
Dick v. Balch, 33 U.S. 8 Pet. 30 30 (1834)
Dick v. Balch
33 U.S. (8 Pet.) 30
The acts of 1715 and of 1766 of Maryland require that all conveyances of land shall be enrolled in the records of the same county where the lands, tenements or hereditaments conveyed by such deed or conveyance do lie or in the provincial court, as the case may be. The courts of Maryland are understood to have decided that copies of deeds thus enrolled may be given in evidence.
Copies of deeds that are not required to be enrolled cannot "be admitted" in evidence, but deeds of bargain and sale are, by the laws of the states required to be enrolled, and, by the uniform tenor of the decisions of the courts of the state, exemplifications of records of deeds of bargain and sale are as good and competent evidence as the originals themselves.
A mortgage was executed and recorded in 1809, and the mortgagee took no measures to enforce the payment of the money clue upon it until 1821. In the meantime, the property mortgaged was sold by the mortgagor, the mortgagee having given no notice to the purchaser of his lien. By the court:
"If the mortgagee never did assert any claim or intimate its existence to the purchaser or her friends, he was not restrained from doing so by having released it. But the mortgage deed was recorded, and this is considered in law as notice to all the world, and dispenses with the necessity of personal notice to purchasers. A deed cannot with any propriety be said to be concealed which is placed upon the public record, as required by law, nor can a previous conveyance and delivery of title deeds to a purchaser be justly denominated collusion because a subsequent encumbrance is taken on the same property. Common prudence would have directed the purchaser to search the records of the county before she paid the purchase money. Had she done so, she would have found the deed on record. It is not in proof that he has done any act to deceive or mislead her. He has been merely silent respecting a deed which was recorded as the law directs."
In the circuit court, a bill was filed to foreclose a mortgage dated on 4 August, 1809, and executed by John Peter to Thomas B. Beale to secure the payment of three promissory notes for $1,000 each, given by the mortgagor to the mortgagee.
The original mortgage having become lost or mislaid, the complainants, in the circuit court, gave in evidence a certified copy thereof, taken from the land records of the County of
Washington, in which office the said mortgage had been duly recorded.
The premises conveyed by the mortgage were a house and lots in Georgetown, which the said John Peter, afterwards on 16 April, 1810, sold and conveyed in fee to Elizabeth Peter, who then paid $6,500, the purchase money therefor, and under whom the defendants claim and hold the premises.
The answers of the defendants set up this title and call upon the complainants to prove the mortgage debt, and insist that at the death of the complainants' testator there was no such subsisting mortgage debt. That if it ever subsisted, it had been released by the testator in his lifetime, and further that he knew of the sale to Elizabeth Peter, and suffered her to buy and pay the purchase money in ignorance of his mortgage, and that he also in his lifetime treated the debt as extinguished, and gave the defendants reason to believe that no such debt subsisted.
The defendants in order to prove that the mortgage debt, if it ever existed, was released by the testator, Thomas B. Beale, produced an instrument, dated 27 April, 1820, which was signed and sealed by several of the creditors of John Peter, and by Thomas B. Beale among them.
This instrument, the complainants allege in their bill, was only to take effect in case all the creditors of John Peter should sign it, and that all the creditors not having signed it, the same never took effect.
They produced two witnesses, Francis Dodge and Clement Smith, to which latter witness the defendants objected as incompetent from interest, who proved that they so understood it and that they believed it was so understood by the other creditors and by John Peter. They produced also a deed from John Peter to said Smith dated April 24, 1820, referring to the deed of release and in consideration of which, the said deed of release was to be subsequently executed, which they proved by the same witness was never carried into full execution, but set aside and revoked by a decree of the court on certain chancery proceedings subsequently instituted by said John Peter and certain of his creditors against said Smith. They also relied on the imperfect and incomplete execution of
the instrument called a release, to show that it never took effect.
The defendants produced two witnesses, John Peter, to whom the complainants objected as incompetent from interest, and George Peter, who proved that they understood there was no such condition to the operation of the release, and it was so understood (as they believed) by all the parties, and they proved it was so expressly declared and represented by the testator, Thomas B. Beale. And they relied on the instrument itself and the deed of trust to C. Smith as conclusive of its intended operation, and denied that parol evidence is admissible to contradict it. They relied also on the proof of John Peter's having possession of the release, as showing it was delivered and treated as the deed of the parties. They relied also on the said Beale's statement to the persons interested in the property of his having relinquished an old debt to said Peter as precluding his executors from setting up this claim against it, even if the release had not the operation they contend for. Also upon his suffering John Peter to have and keep possession of the release, by which he was enabled to show it to the defendants as releasing the property from the claim of this mortgage.
The circuit court gave a decree in favor of the complainants, from which this appeal was prosecuted.
In the opinion of this Court, those facts which were particularly relied upon in the argument are stated more at large by the Court.
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